Articles Posted inNational Origin Discrimination

Last month, the United States Equal Employment Opportunity Commission (“EEOC”) issued a new Enforcement Guidance regarding national origin discrimination under Title VII of the Civil Rights Act of 1964 (“Title VII”).

While the Guidance is not legally binding, it explains the position of the Commissioner of the EEOC. Below is a brief overview of some of the most noteworthy topics it addresses:

New Jersey’s Appellate Division recently ruled that when a company does not follow through with the plan it used to justify firing an employee, such as its plan for a reorganization or reduction in force, that failure can be enough for a jury to conclude that the decision to fire the employee was discriminatory.

In Abraham v. American International Group, Inc., Lisbi Abraham sued American International Group (AIG) claiming the company fired him because of his race and national origin, in violation of the New Jersey Law Against Discrimination (LAD). Mr. Abraham is a United States citizen of Indian descent. His was AIG’s Chief Technology Officer (CTO) for the company’s Domestic Brokerage and Information Services Groups. The LAD prohibits companies from firing employees based on their race or national origin.

In October 2005, AIG issued a report which concluded that it should eliminate 13 of its 20 CTO positions. In May 2006, AIG fired Mr. Abraham. AIG claimed it fired him because it was restructuring the Information Services Group to eliminate duplication and redundancy of job functions.

The Appellate Division explained that one way a plaintiff can prove discrimination is by offering evidence that discredits the employer’s explanation for its actions. It ruled that Mr. Abraham had evidence to discredit AIG’s claim that it fired him as part of a job restructuring. In particular, although several other people temporarily took over Mr. Abraham’s job duties after he was fired, none of his functions were permanently transferred to other employees. Since there is evidence that Mr. Abraham’s job never was merged into another job, as AIG claimed it intended to do when it justified firing Mr. Abraham, the Appellate Division ruled that a jury could conclude that AIG fired him because of his race or national origin.

The Appellate Division was careful to recognize that courts should not act as “super-personnel departments,” or second-guess employment decisions such as job restructuring. However, it also recognized that companies can violate the LAD in many “subtle and nuanced ways,” that there is rarely “smoking gun” evidence to prove discrimination, and that often there are not even any overt acts of discrimination. The court concluded that, after a trial, a jury could find that AIG discriminated against Mr. Abraham because of his race or national origin, or it could find that AIG’s decision to fire him was legitimate. It therefore sent his case back for a trial.

Earlier this month, New Jersey’s Appellate Division ruled that it is improper to present a jury with evidence regarding “after-acquired evidence” until after it has determined that an employer violated New Jersey’s Conscientious Employee Protection Act (CEPA). CEPA is New Jersey’s whistleblower law.

After-acquired evidence is when a company learns during a discrimination or retaliation lawsuit that the employee did something while he worked for the company that would have been grounds for firing him. If the employer can prove it would have fired the employee based on the new evidence, the employee’s damages for lost salary and benefits are cut off from the date on which the employer learned the new information.

Even when it applies, the after-acquired evidence defense does not prevent an employee from proving a wrongful termination claim, does not impact damages for salary and benefits the employee lost before the employer discovered the wrongdoing, and does not limit damages for emotional distress damages in any way. It only cuts off damages for lost salary and benefits starting from the date on which the employer discovered the new information.

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